Kevin Drum - February 2011

A knowledgeable reader writes in to take issue with my earlier post about Judge Vinson's ruling on the constitutionality of the healthcare reform law's individual mandate provision:

As someone who works in health policy and has studied this issue pretty closely in consultation with several lawyers, I have to take issue with your assertion that:

"Judge Vinson simply decided to make up his own law and ignore precedent entirely."

This is simply not a fair reading of his decision which was eminently reasonable, if not necessarily correct. He discussed the relevant precedents in great depth and came to a conclusion that although the Commerce Clause does give the national government a virtually unlimited ability to regulate things that have a substantial impact on interstate commerce, this particular instance is beyond the pale.

You can, and I do, disagree with his reasoning in this area. I am a supporter of healthcare reform generally and a believer in the necessity of the individual mandate specifically. There are a lot of things that have been justified under the Commerce Clause that I find unjustifiable, but a mandate for this specific product is an exception that I would make if I were deciding these matters of law.

The reason that I write to you about this is that I really think that you (and other center-left commentators) are missing a very important point here, namely that Vinson both in his striking down the mandate and declaring that the provision cannot be severed, is acting well within controlling precedent. This decision would be radical in its impact but it is not a radical decision. Were the Court to rule against the entire healthcare law here, it would be objectively on much firmer precedential and textual ground than it was in Bush v. Gore (or for that matter Roe v. Wade, Buckley v. Valeo, Brown v. Board, etc.). We need to wake up to this reality and start dealing with it accordingly. In fact, we were aware of this early in the process and could have structured the requirement to make it pass constitutional muster (designing it as a tax rather than a penalty which we have attempted to do ex post to no avail).

So we'll see what happens. But the moment is coming that I have been dreading ever since my first correspondence with a friend (a Democrat who is a lawyer and former law review editor) who said when he first heard of this proposal in Hillary's healthcare plan ... "well, that's unconstitutional on its face."

Obviously I take a dimmer view of Vinson's decision: I just don't see how it jibes at all with current Supreme Court precedent. But if my reader is right, the Supreme Court itself might end up disagreeing with me.

I'm not sure what that would mean. My guess is that they won't throw out the entire law regardless; only the individual mandate will get overturned. If that's the case, then Republicans will be in a sticky situation. Democrats will pretty obviously be unwilling to repeal the rest of the law, but the health insurance industry will go bananas if everything else stays intact but the individual mandate goes away. They'd argue, with some justice, that this would essentially destroy them, and they'd demand that Republicans join with Democrats to do something about it. That would be hard pressure for Republicans to resist.

This is all still a couple of years away, since it still has to go through the appellate courts and I assume the earliest the Supreme Court could take it up would be in its 2012-13 session, with a decision handed down sometime in 2013. So we have plenty of time to think about it.

This isn't too hard to understand, either. People mostly associate Reagan with recovery from a lousy economy, they associate him with the fall of the Iron Curtain, and they associate him with rebuilding America's prestige in the world. Maybe this is right, maybe it's not, but it's pretty understandable.

Generally speaking, even decades later presidents are mostly judged by how they did and how things were going during their last year in office. Things were going great for Kennedy, Reagan, and Clinton, so they're remembered very favorably. Things were going decently for Eisenhower, Ford, and Bush Sr., and they're remembered decently. Things were going badly for LBJ, Nixon, Carter, and Bush Jr., and they're remembered badly. The main exception seems to be Truman, who ended his presidency on a sour note but has since recovered pretty well.

In any case, maybe Reagan deserves his popularity, maybe he doesn't. Still, he's a pretty popular guy.

Jon Huntsman was a successful governor, is a successful ambassador, is personable, handsome, accomplished, fluent in Mandarin and has all the makings of a major-party presidential candidate sometime in the future. Apparently, Mr Huntsman seems to have decided that the future is now: he will resign as ambassador to China in May and appears poised to run for president next year. This is a baffling decision....First, Republicans really don't like Barack Obama. Mr Huntsman has just spent two years as an Obama appointee....Second, why would he waste his candidacy this year? He brings moderation and an actual record of bipartisanship to a party and a primary electorate that seems interested in neither.

....The obvious answer, of course, is that he's leaping in because he thinks he can win.

Actually, I'd say the obvious answer is exactly the opposite. Huntsman's chances do indeed seem pretty slim in this election cycle — both in the primaries and in the general election. However, his name recognition is minuscule, and if he wants to run seriously in 2016 he needs to become better known. The best way to do that is to run in 2012. If he runs a decent, serious race, but loses to a more wingnutty candidate who then gets blown out by Obama, he'll have pretty good credentials for a 2016 run.

Now, I don't know if actual big-time politicians ever think this way. They seem to have an almost bottomless ability to believe against all evidence that they can win the presidency. (Fred Thompson? Seriously?) But Huntsman seems like a pretty smart, self-aware guy, and I wouldn't be surprised if he knows perfectly well that the odds are stacked against him. Most likely, what he's really doing is auditioning for 2016.

A couple of times yesterday I started up a post on the federal district court judge who ruled that the healthcare reform law was unconstitutional. And both times I killed it because I didn't really care. This case is going to the Supreme Court, and they don't give a rat's ass about the legal arguments of the various district court judges who have ruled for and against PPACA. So Judge Vinson's decision doesn't really matter.

But a lawyer friend of mine writes in to say it does matter:

Kevin, this is a classic example of what happens when judges become overtly political, so I have to disagree with one of your posts from a few days ago where you advocated for a more political judiciary.1 We're all political, and for judges that often serves to slant their opinions, but in our system of precedent there are generally a series of margins they can't push — such as willfully ignoring Appellate Court or Supreme Court precedent. Like Vinson does when he converts his opinion to a political policy statement. Orin Kerr takes him apart at Volokh Conspiracy. And what's frightening is that Orin is very clearly right but somehow none of that may matter if this just becomes another exercise in supporting Team Red no matter what the costs.

It's a heavy subject and I can't really write about it without sounding like a naif, but for me the struggle to maintain the independence of the judiciary is one of the most important for the country. And political and cavalier (and clearly intentionally unserious conduct) from Article III judges — or worse, appellate and S.Ct. judges — can have devastating effects. (o.k. so much for not sounding like a naif).

The Orin Kerr post he links to makes this point explicitly: district court judges aren't supposed to decide cases on first principles, as Judge Vinson appears to have done. They're required to obey precedent from higher courts. And unless the Supreme Court changes its mind, precedent is pretty clearly on the side of PPACA's individual mandate being constitutional, whether you like it or not:

The words of the relevant Supreme Court cases [Wickard v. Filburn and Gonzales v. Raich] point to an extremely broad power, and Judge Vinson is supposed to be bound by those words. But Judge Vinson concludes that these words can’t be taken at face value because “to uphold [the mandate] via application of the Necessary and Proper Clause would [be to] . . . effectively remove all limits on federal power.”....Judge Vinson is reasoning that existing law must be a particular way because he thinks it should be that way as a matter of first principles, not because the relevant Supreme Court doctrine actually points that way. Remember that in Raich, the fact that the majority opinion gave the federal government the power to “regulate virtually anything” was a reason for Justice Thomas to dissent. In Judge Vinson’s opinion, however, the fact that the government’s theory gave the federal government the power to “regulate virtually anything” was a reason it had to be inconsistent with precedent.

In a narrowly operational sense, I still don't think these decisions mean anything. The Supreme Court will decide the fate of PPACA, and they are allowed to overturn precedent if they want to. Still, both Orin Kerr and my legal buddy have a point: both of the decisions ruling PPACA unconstitutional were embarrassing and dangerous. Judge Hudson relied on elementary logical mistakes of the kind that a first-year law student would get marked down for, and Judge Vinson simply decided to make up his own law and ignore precedent entirely. Conservatives really shouldn't be celebrating these decisions even if they happen to like the results. Rather, they should accept that lower courts need to reason properly based on existing precedent, but then argue that the Supreme Court needs to change the precedent. It's the only intellectually honest approach, and the only one that isn't likely to come back to bite them in the ass sometime down the road.

1In my defense, I was only arguing that Supreme Court justices should drop the pretense that they're purely apolitical creatures, since obviously they aren't. Plus I was drunk that day.

In its never-ending quest for a pro football team, one of the groups with plans to build a new stadium in Los Angeles is teeing up an announcement:

Backers of a plan to build a football stadium in downtown Los Angeles are set to announce Tuesday that they have reached a naming-rights deal worth $700 million, which would be the most valuable such agreement ever and a significant step toward bringing an NFL team to Los Angeles.

....The deal [with Farmers Insurance] would provide AEG's proposed project a crucial chunk of contractually obligated income, starting at $20 million for the first year and escalating incrementally every year after, according to individuals familiar with the negotiations but not involved in them. The stadium would be named Farmers Field.

I'm wildly ignorant about this stuff, and obviously naming rights have been big business for sports venues for a long time now. But I'm still a little perplexed by it. Is this stuff really worth it? Does Farmers Insurance truly get $20 million per year of promotional value just for having its name on a stadium? Or is this largely a charity operation, with a local company demonstrating its support for the community? Or what? Can anyone point me to the definitive piece to read on naming deals?

Jordan's King Abdullah II on Tuesday dismissed Prime Minister Samir Rifai and his cabinet after widespread protests by crowds of people inspired by demonstrations in Egypt, Tunisia and elsewhere.

The weekly demonstrations, which have drawn momentum from the unrest in the region and were joined Friday by thousands across Jordan, reflect growing discontent stoked by the most serious domestic economic crisis in years and accusations of rampant government. Demonstrators protested rising prices and demanded the dismissal of Rifai and his government.

One of the staples of op-ed page commentary is complaints about third-world governments that subsidize food and fuel to keep prices down. It's inefficient! The market should set prices! And so it should. But events of the past couple of weeks certainly make the decision to subsidize a lot more understandable, don't they? If it's a choice between market efficiency and keeping your head off a pike, market efficiency is going to lose every time.